Grainger & Grainger (No 2)
[2024] FedCFamC1F 460
•16 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Grainger & Grainger (No 2) [2024] FedCFamC1F 460
File number(s): LEC 216 of 2022 Judgment of: SCHONELL J Date of judgment: 16 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Objections to subpoenas – Where the father sought to issue subpoena to a treating psychologist of the child – Where psychologist and mother objects to release of documents to the father – Where the psychologist contends that the documents were the subject of privilege – Where the psychologist contends that the inspection of the documents would be detrimental to the ongoing trust and psychological relationship between the child and the psychologist – Where the mother contends that seeking access to the subpoenaed material is “fishing” – Where the objection was dismissed – Where inspection of the documents was to take place within the precinct of the courtroom and no party was permitted to take copies of the documents. Legislation: Family Law Act 1975 (Cth)
Convention on the Rights of the Child
Cases cited: Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39
Crawford & Sisinis and Anor (2014) FamCA 912
Lucas Industries Ltd v Hewitt (1978) 45 FLR 174; (1978) 18 ALR 555
R v Saleam (1989) 16 NSWLR 14
Rochfort v Trade Practices Commission (1982) 153 CLR 134
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 2 – 4 July 2024 Place: Sydney The Applicant Litigant in person Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Mr Bawa, Justice Family Lawyers Counsel for the Intervener: Duncan Holmes, Holmes Donnelly & Co. Solicitors Counsel for the Second Intervener: Mr North Solicitor for the Second Intervener: Colin, Biggers & Paisley ORDERS
LEC 216 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GRAINGER
Applicant
AND: MS GRAINGER
Respondent
INDEPENDENT CHILDREN'S LAWYER
First Intervener
MR BB
Second Intervener
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
16 JULY 2024
THE COURT ORDERS THAT:
1.The Notices of Objection filed 20 June 2024 are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grainger & Grainger has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
At the commencement of the final hearing in this matter, the Court was asked to deal with two Notices of Objection to the production and inspection of clinical notes of a psychologist, upon whom the child had attended for the purposes of therapy. The subpoena was issued by the self-represented father. Notices of Objection were filed by the mother and the psychologist.
The psychologist was separately represented on the objection by counsel, as was the mother. The ICL did not seek to be heard. Following oral submissions and perusal of written submissions, I dismissed the Notices of Objection, directed production and permitted inspection. Inspection was to take place within the precinct of the courtroom and no party was permitted to take copies of the documents.
I indicated that I would deliver reasons at the time of delivery of judgment. As it is, the reasons for the dismissal of the Notices of Objection are delivered before my final reasons. These are the reasons.
BACKGROUND
Some context is required to understand the basis for the dismissal of the Notices of Objection.
The proceedings relate to a child who is nearly 15. She has been the subject of litigation for much of her life, including two final parenting hearings in this Court in 2015 and 2019, and multiple hearings in the UK following the mother’s wrongful retention of the child in that country.
On 15 April 2024 the matter was listed for a further final hearing with the parties to file all affidavits on which they intended to rely on or before 13 May 2024.
The mother, for her part, sought to rely upon an affidavit sealed 15 May 2024 by Mr BB, the child’s treating psychologist (“the psychologist”) since around September 2018. His affidavit annexed to it various reports dated 17 October 2022, 13 March 2023, 17 March 2023 and 6 May 2024.
The first report recorded that the child had been referred to the psychologist in September 2018 and he commenced a therapeutic relationship with the child in November 2018. His last report recorded he was in the process of winding up his practice as a psychologist. That process would be concluded by 30 June 2024, and he said that his last report would be his final report.
The mother’s affidavit recorded the child had ended her therapeutic relationship with the psychologist because of his retirement.
Each of the reports record the treatment provided, clinical observations, clinical impressions, and clinical opinions. The reports recorded in direct speech things that the child said, as well as recording in indirect speech things that the child reported.
The subpoena issued by the father called for documents in the following terms:
2.Copies of all documents whatsoever relating to the below named persons, including but not limited to attendance records, clinical notes, files, assessments, treatment, diagnosis and prognosis, medical certificates, referrals, memorandums, emails to and from, letters to and from, notes relating to telephone calls to and from, and any other correspondences:
a) [The child];
b) [The mother]; and
c)[The maternal grandmother].
The psychologist objected to both production and inspection. On the issue of production, he contended that the documents were the subject of privilege as they related to a psychological relationship between the child and himself, as well as in some instances the mother and himself, and that the subpoena was too broad.
On the issue of inspection, the psychologist asserted that the documents in question were sensitive and that he had concerns about the risk to the mental health of the child if they were to be inspected by her or other persons. The psychologist also asserted that it was likely to be detrimental to the ongoing trust and psychological relationship between the child and himself, and that the material was clinical in nature and may be misinterpreted by non-clinical parties.
The mother’s Notice of Objection similarly contended that the documents related to a therapeutic relationship and that providing access would be a breach of trust, that the documents included confidential information, that the release serves no legitimate forensic purpose, that they are not relevant to an issue in the proceedings and are a fishing expedition.
APPLICABLE LAW
The jurisprudence in relation to subpoenas is well settled.
A subpoena is akin to a court order. Justice Mason (as he then was) in Rochfort v Trade Practices Commission (1982) 153 CLR 134 held that:
143.… The subpoena, which has the effect of a court order, requires the person to whom it is addressed to produce the documents which it describes. It assumes that he has the ability or capacity to produce them. At times this idea has been expressed by saying that the person served is bound to produce any document which is in his possession, custody or control. But these statements should not be allowed to obscure the true effect of the subpoena – it binds a person who can produce the documents to do so.
The Court’s power to issue a subpoena is part of its’ obligation to ensure the proper administration of justice.
In Lucas Industries Ltd v Hewitt (1978) 45 FLR 174, Smithers J held that:
189.The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (“Secretary of the Department of Planning, Industry and Environment v Blacktown City Council”), Brereton JA observed:
84. In modern litigation, the subpoena for production is crucial to the ability of a party to investigate the facts and assemble evidence to prove a case. That is particularly so in civil litigation, where a plaintiff does not have the extra-curial investigative powers that are available to police and prosecutors in the criminal context.
The issuing party bears the onus of establishing to the satisfaction of the Court the legitimate forensic purpose relied upon in seeking the production of documents (R v Saleam (1989) 16 NSWLR 14 at [18]).
The test has been expressed in terms of apparent relevance.
In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council, Bell P observed:
68.… The word “apparent” admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.
69. If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. …
…
71. The converse of this, namely the absence of any apparent relevance (in the broad sense of that term) of the documents sought to be subpoenaed to the issues in the case, may warrant a conclusion of a lack of legitimate forensic purpose and be a sufficient ground to set aside a subpoena or a part of a subpoena: see Portal Software at [22]. That is because, if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation. That may not have been the issuing party’s motivation, but the lack of apparent relevance test is a convenient means of delimiting that which is legitimate.
His Honour went onto observe:
80. My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in Saleam at [11], it can:
“(i) identify a legitimate forensic purpose for which access is sought; and
(ii) establish that it is ‘on the cards’ that the documents will materially assist his case”,
at least in civil matters, an inability to demonstrate that it is “on the cards” that the documents sought will materially assist the subpoenaing party’s case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.
While Brereton JA observed:
89. I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is “likely” (or “on the cards”) that the documents sought will materially assist its case, as distinct from that it is “likely” (or “on the cards”) that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they “appear relevant in the sense that they relate to the subject matter of the proceedings”; or that they could possibly throw light on the issues in the case. Moreover, documents will add “in some way” to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence.
(Footnotes omitted)
The Court’s power to set aside a subpoena is but part of its’ power to regulate its’ own processes and to intervene where necessary to prevent an abuse of process. A subpoena will constitute an abuse of process if it is not issued for a legitimate forensic purpose.
DISPOSITION
On the matter of production, counsel for the psychologist abandoned any contention that the documents were privileged, nor did he press any submission that the terms of the subpoena were too broad.
Counsel for each of the psychologist and the mother relied upon the sensitive nature of the documents and the assertion that there was a risk to the child’s mental health if the documents were to be inspected and produced.
I acknowledge that parenting proceedings are to be conducted consistent with the principles espoused in s 69ZN of Family Law Act 1975 (Cth). I am also cognizant of the Convention on the Rights of the Child and in particular, Article 16.
There is however some irony, if not hypocrisy, in any submission based upon vulnerability or the child’s right to privacy. Neither the mother, nor the psychologist, considered it a relevant consideration when the reports were prepared and then sought to be relied upon as evidence in the proceedings. Counsel for the mother was specifically asked in considering the subpoena whether she still sought to read the affidavit of the psychologist. Counsel confirmed that the mother pressed reliance on the affidavit. Such approach placed any perceived forensic advantage occasioned by reliance on the reports over the child’s vulnerability and privacy.
There was no evidence to support a submission of risk to the child’s mental health. The psychologist, being a person uniquely placed to give that evidence, adduced no evidence to support the assertion that there would be a risk to the mental health of the child if the documents were produced and inspected. In that respect, I also note the observations of Berman J in Crawford & Sisinis and Anor (2014) FamCA 912 that “if s 69ZN (3) is applicable, there needs to be evidence as to the potential effect on the child if the information the subject of the objection is released.”
If this was indeed a serious concern and consequentially a serious submission, then it should have been supported by evidence. A Notice of Objection is not evidence of the facts contained within it. It is to be noted that the ICL did not wish to be heard on the issue of production and inspection. If the ICL had a serious concern in that respect, then he would have made submissions. He did not.
The concern that the child might inspect the document reveals a basic misunderstanding of the Court’s processes. There was not, nor would there be, a grant of inspection to the child.
Submissions were also made that the production and inspection of the documents would disrupt or in some way affect the therapeutic relationship. This was a curious and consequentially arid submission in circumstances where the evidence revealed that the therapeutic relationship had ended.
The mother, in her Notice of Objection, made a generalized objection based on confidentiality. Beyond the broad contention, no submissions were advanced in support of it. There is no right to object to production of documents based on some broad unspecified claim of confidentiality unless it can be brought within a recognized head of privilege (see Halsbury's Laws of Australia at [325-7450]).
The assertion on behalf of the mother that the documents serve no legitimate forensic purpose or constitute fishing is absurd. Taken to its logical extension the submission that the subpoena serves no legitimate forensic purpose must apply with equal force to the reports which constitute the psychologist’s evidence as they are based on his clinical notes. As to fishing, the father was merely seeking production of the documents that the expert relied upon for the purposes of the report. The argument that it constitutes fishing is fatuous.
The contention by the psychologist that the documents “may be misinterpreted or misrepresented by non-clinical parties” is not a basis to resist production or inspection. The interpretation that could be placed on them was a matter for evidence, cross examination of the maker and submission in the hearing proper.
The mother has sought to utilise the psychologist’s evidence to her advantage in the proceedings. To deny the father access to the documents would be to deny to him the opportunity to test the assertions and opinions expressed in the various reports by reference to the very documents used by the author to prepare them. The documents are clearly relevant to issues in the proceedings as evidenced by the reliance on the reports. The administration of justice is best advanced when all relevant evidence is available to the Court (see Baker v Campbell (1983) 153 CLR 52 [66] per Gibbs CJ).
These are the reasons for dismissing the Notices of Objection.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 16 July 2024
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